High Court 90 of 2011

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU Succession Cause 68 of 2010 IN THE MATTER OF THE ESTATE OF: DAVID KIMANI KABATA :::::::::::::::: DECEASED AND WILLIAM KAMBERE KIMANI :::::::::::::::: PETITIONER/RESPONDENT VRS TERESIA NJERI MAGU :::::::::::::::: APPLICANT RULING The deceased David Kimani Kabata died intestate on 20/1/2009 following which the Respondent, being one of the sons, filed this petition for letters of administration. Subsequently, the family consented to having joint letters issued to the Applicant , Nancy Njeri Kimani and Elizabeth Waithera Macharia. The deceased had three wives and each administrator represented each house. The estate of the deceased comprised land parcels nos. Inoi/Ndimi/1645, 1644, 537 and 327. The Applicant filed this application under section 3A of the Civil Procedure Act seeking that the court restrains the Respondent, and all those acting under him, from committing acts of waste on parcels 327 and 537, or from interfering with the deceased’s estate until the grant has been confirmed. In the supporting affidavit, the Applicant alleged that the Respondent is; “intermeddling with the estate of the deceased by committing acts of waste on our father’s parcel of land by wantonly cutting down trees.” The Respondent swore a replying affidavit to say that parcel 537 is in the possession and occupation of his step-brother Peterson Kabata Kimani and one Nancy Njeri Kimani and there is no way he can access it, leave alone cutting trees thereon or damaging it. The other parcel, he stated, was being used by the three houses and that he had not interfered with it in any way. The Applicant did not swear any further affidavit to challenge the averments contained in the replying affidavit. Further, it is clear to me that the supporting affidavit lacks particulars. For instance, the date and time when the alleged intermeddling and cutting of the trees were done were not indicated. It was not indicated how many trees were cut, or which type. In short, there is insufficient material to back the orders sought.

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